Temmerman, Cilley & Kohlmann, LLP - Estate Planning

San Jose Estate Law Blog

Spendthrift trusts can allow for responsible financial habits

Many families across California can identify with having children, grandchildren or other beneficiaries that failed to inherit the same diligent savings habits as their parents or grandparents. As you plan your estate, you may worry about how these loved ones may cope with a sudden increase in wealth.

Fortunately, there are options for you to proactively plan for such situations. Spendthrift trusts, or trusts with a spendthrift clause or provision, allow you to do just this. While your loved one will still receive the assets intended for them, they will receive such assets in periodic distributions set according to your customized terms.

What is a living will?

In all likelihood, you have some pretty specific ideas about the type of medical care and treatment you want and do not want at the end of your life. But who will carry out your wishes when the time comes if you are too ill or incapacitated to make your wishes known? This is where a California living will can serve you well.

As FindLaw explains, your living will is considerably different than a “normal” will. In your regular will you specify who you want to receive your various pieces of property when you die. In your living will, however, you specify what types of medical care and treatments you want and do not want when your life comes to an end.

What happens if you die in debt?

With more people in California over the age of 75 accruing credit card debt and mortgages than in previous decades, it is becoming increasingly likely that you may leave debts behind for your heirs rather than assets. If you are in debt, it can be difficult to look beyond the present, but estate planning is still important at this stage. Specifically, it is important to take steps to protect your loved ones from having to pay off your creditors.

Many older parents who own property choose to transfer it to their adult children or add their names to the deed in the hopes of avoiding probate costs and/or attention from creditors. However, according to the Seattle Times, this is an estate planning mistake that can potentially cause them legal and tax problems after you are gone. There are other, better ways to avoid probate and protect what assets you do have from creditors. 

What if one dies without a will?

Experts counsel people both in San Jose and throughout the rest of the U.S. to see to their estate planning early on in their adult lives. Yet even so, many American adults do not have a will. What happens, then, if you have a family member dies without ever preparing one? In such a case, their estate becomes subject to intestate succession. "Intestate" is the word applied to cases where one dies without a will, and the terms regarding how their estate will be dispersed are set forth by the state. 

California's guidelines regarding intestate succession can be found in Sections 6400-6414 of the state's Probate Code. Here it states that if the decedent was your spouse, you are entitled automatically entitled to one-half of the community and quasi-community property the two of you shared. Your deceased spouse's portion of that property would then be included in their separate property. you would also be entitled to the full amount of that separate property if your spouse has no surviving issue (direct descendants), parents or siblings. If they have one surviving descendant, parent or sibling, you would then receive one-half of their separate property, while the other half would go to that party. Your share of the separate property would lower to one-third if they have multiple surviving issue or direct family relations. 

The importance of succession planning for family businesses

Running a family business comes with a lot of day-to-day demands. So, the owners of such companies may have their thoughts fixed on the present. However, it can be critical for such owners to also plan for the future. This includes having plans for what will happen with the business when they are no longer running it.

This is called succession planning, and failing to do it could create a lot of problems for a family business. If the owners of such a company retire, become incapacitated or die without having a firm succession plan in place, it could lead to confusion and in-fighting among the owners’ family and loved ones over what will happen with the company. This could both be damaging to the company and create a lot of tension and conflict within a family.

What are the legal grounds for challenging a will?

Challenging the validity of a will is not an action to take lightly. The process will likely be emotional, expensive and difficult to win. However, challenging the validity of a will can be the most appropriate action in certain circumstances, and can result in part or all of a will being invalidated.

Fraud, forgery and undue influence

What to Watch Out for If There's a Sudden Death in Your Family

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Did you know that Anthony Bourdain's will revealed that the celebrity chef and author had an estate of only $1.21 million? Estimates of the TV star's worth had been around $16 million, which made the revelations from his will even more startling. This is an example of how sudden death can uncover some very big surprises when it comes to an estate.

Why Do Attorneys Ask You to Explain Your Estate Plans?

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You shouldn't procrastinate when it comes to planning your estate. However, the process can seem long and protracted when you get into your estate lawyer's office and face a bevy of questions. Sometimes, it can even feel like these questions are doing nothing more than keeping you from writing your will, but this interrogation has a purpose. And if you try to skip this process, your beneficiaries could be the ones to pay the price.

Can Creditors Make Claims on Your Estate?

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When it comes to leaving behind a legacy for your family and friends, estate planning is often the most powerful way to ensure your wishes are followed. But that plan has to be robust, and it has to account for every part of your financial life. Otherwise, creditors can make claims on your estate, and potentially keep your beneficiaries from receiving what was bequeathed to them.

Nobody Has Died, So Why Is This Estate Issue Going to Court?

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When it comes to planning your estate, preparation is always advised over procrastination. However, one California media mogul may be taking preparation to a whole new level His estate issue could be heading to court long before he actually passes away.

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